OSHA Decision on Electronic Injury Filings Challenged

August 2, 2018

Public Citizen, the American Public Health Association, and the Council of State and Territorial Epidemiologists filed a lawsuit last week, challenging OSHA’s decision to suspend requiring the submission of Forms 300 and 301 by large companies by the July 1, 2018 deadline under the Agency’s electronic injury and illness reporting rule.

The groups argue that OSHA’s decision violated the Administrative Procedure Act’s notice-and-comment rulemaking process and was arbitrary and capricious.

“When OSHA issued the rule, it did so because it recognized that the submission and public release of workplace data was necessary to ensure that workers have improved working conditions,” said Sean Sherman, a Public Citizen attorney. “OSHA’s decision to suspend these requirements subverts its central mission.”

The NGOS are seeking an injunction that would force OSHA to implement and enforce all aspects of the rule as currently written and mandate that covered entities submit their data within 30 days.

OSHA issued a proposed rule last week to amend the Obama-era regulation to remove the two forms from the annual electronic submissions, stating that personal identifiable information could be gleaned online from them. During the rulemaking process, the Agency said it would not accept the two forms through its online portal. Large establishments with more than 250 employees still had to submit Form 301A electronically to OSHA by July 1. Next year’s deadline is March 1.

Separately, Public Citizen sued OSHA earlier this year, requesting that the court compel OSHA to produce the electronic injury and illness records that covered employers submitted last year. Public Citizen said it filed two requests under the Freedom of Information Act (FOIA), seeking the information so it could “conduct research on issues of workplace health and safety.” OSHA denied those requests.

Many industry groups and businesses have questioned the public disclosure aspect of the regulation, believing that the illness and injury information could easily be misinterpreted or misconstrued.